Are foreign nationals the solution to increased workload and personnel shortages?

For years on end Slovenia has been experiencing shortages of qualified personnel and the situation on the market is worsening day by day. These shortages are most prevalent in the hospitality industry, construction and health-care, and are exacerbated in the summer months due to the influx of tourists and the surge in construction projects. Consequently, employers are increasingly resorting to employing foreign nationals. Against this background, the Foreign Nationals Act (Official Gazette of the Republic of Slovenia, No. 1/18, ZTuj-2) and the Foreign Nationals (Employment and Self-Employment) Act (Official Gazette of the Republic of Slovenia, No. 1/18, ZZSDT), were adopted recently and introduced a uniform residence and work permit (uniform permit) issued in the form of a card. We addressed this topic in our November 2017  issue of Legal BUZZ.

To obtain a uniform permit (i) the employee (foreign national) files an application with the representative office of the Republic of Slovenia abroad (Embassy, Consulate, etc.), or (ii) the employer files an application with the administrative unit (AU) having responsibility for the employer’s place of work, the employee’s place of work or the place where the employee shall reside in Slovenia. Since AUs process applications on a first-come, first-served basis, we recommend that applications be filed with one of the AUs in Slovenia, which are typically less inundated with applications.

The application, completed using a special form,  shall also be accompanied by all the necessary supporting documents. The application is then forwarded to the Employment Service of Slovenia (ESS) through an electronic data exchange system, which verifies that the employer is eligible to employ a foreign national and whether there are suitable candidates in ESS’s register for the vacancy. This ESS check is a prerequisite for issuing a uniform permit. Subsequently ESS can grant (i) permission for employment, self-employment or work, (ii) permission for seconded employees, (iii) permission for seasonal work and authorize seasonal work, (iv) permission for a representative, etc. ESS can also refuse permission, if the prerequisites are not met or request additional documentation or information from the employer or foreign national. It should also be noted that ESS recently began to closely examine provisions of the employment agreements, enclosed with the application, and often requesting changes to be made within the employment agreements (when ESS assess that an employment agreement provision does not comply with the applicable legislation).

ESS is required to render a decision within 15 days of receipt of an application. If ESS grants permission, it must notify the AU thereof. ESS permission does not constitute a public document and is kept on file by the ESS and the AU. The AU issues the employee or employer, for their own records and to comply with any employment inspection, with an information sheet summarizing the particulars of the granted permission.

The AU then checks whether the foreign national is eligible and whether all necessary supporting documents have been submitted with the uniform permit application. At the same time, the AU will request confirmation from the Ministry that the annual foreign national employment quota has not been exceeded. If all the conditions are fulfilled the AU will issues a uniform permit. A uniform permit must be issued within 30 days of receipt of a complete application. The deadline is instructive, which means that it cannot be (always) relied upon.

A uniform permit can be issued for a maximum of 1 year or for the term of the employment agreement if concluded for a shorter term (e.g. in the case of seasonal work). The permit may be extended for up to 3 years.

The employment of certain foreign employees from Bosnia and Herzegovina (registered in the unemployed persons register in Bosnia and Herzegovina and are at least 18 years old), who are employed in large numbers in Slovenia, is subject to special rules laid down by the Agreement and the related Protocol governing the employment of citizens of Bosnia and Herzegovina in the Republic of Slovenia. As predicted in our December issue, the Law Ratifying the Agreement on the Employment of Citizens of the Republic of Serbia in Slovenia was adopted and approved in late May 2019, which will cut much of the red tape surrounding the employment of Serbian citizens in Slovenia.

Under the agreement, citizens of the Republic of Serbia who are registered in the unemployed persons register in Serbia (and are at least 18 years old) or highly skilled employees, are eligible for fast-track employment in Slovenia. These employees can be granted a uniform permit for 3 years, with the employer having to conclude an employment agreement with an employee of at least one year; the agreement can include a probationary period, which cannot exceed 3 months. After one year, the employee will have free access to the labor market for the duration of the uniform permit and will no longer be tied to the “first” employer, but will be able to seek new employment, establish a company, open a branch office, etc.

Seasonal employees must, as a rule, return to Serbia at the end of the season, unless they continue working for the same employer after seasonal work has finished. Failure to do so will result in the uniform permit being revoked prior to its expiration date, on grounds of misconduct under Article 89(1)(3) of ERA-1. The same rules already apply to citizens of Bosnia and Herzegovina, while plans are afoot for a similar agreement regarding citizens of Ukraine.

In addition to these specific rules for citizens of Serbia and Bosnia and Herzegovina and the provisions of the ZTuj-2 and ZZSDT, employers should also ensure that they adhere to the rules of the Employment Relationships Act (Official Gazette of the Republic of Slovenia, No. 21/13), the Labor Market Regulation Act (Official Gazette of the Republic of Slovenia, No. 21/13) and any collective agreements binding on the employer.